1420459 (Migration)
[2015] AATA 3492
•19 October 2015
1420459 (Migration) [2015] AATA 3492 (19 October 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: SALISHA PTY LTD ATF THE T & S MILLAR FAMILY TRUST
CASE NUMBER: 1420459
DIBP REFERENCE(S): BCC2014/2433569 BCC2014/2434504
MEMBER:Mary-Ann Cooper
DATE:19 October 2015
PLACE OF DECISION: Melbourne
DECISION:The Tribunal sets aside the decision not to approve the application and substitutes a decision that the applicant is approved as a standard business sponsor.
Statement made on 19 October 2015 at 8:49am
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Immigration on 25 November 2014 not to approve the applicant as a standard business sponsor.
The applicant applied for approval as a standard business sponsor under s.140E of the Migration Act 1958 (the Act) and r.2.61 of the Regulations on 25 September 2014. The delegate decided not to approve the application on the basis that the applicant did not satisfy r.2.59(d) of the Migration Regulations 1994 (the Regulations) because the relevant training benchmark was not met.
The applicant, as represented by its Director, appeared before the Tribunal on 8 October 2015 to give evidence and present arguments.
The applicant was represented in relation to the review by its registered migration agent who also attended the hearing.
For the following reasons, the Tribunal has decided to set aside the decision under review and substitute a decision approving the applicant as a standard business sponsor.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements for approval of as a standard business sponsor in accordance with the criteria in r.2.59 and the additional criteria in r.2.60S, which must be satisfied regardless of when the application for approval was made. For the application to be approved, all the requirements must be met: s.140E(1).
The delegate had assessed the applicant’s expenditure on training but was not satisfied that it was recent and sought further information which was not provided by the applicant. Consequently the application was refused. Prior to the hearing the applicant provided a submission and supporting documentation including various invoices and records which it claimed to substantiate its training expenditure.
Process for application
Regulation 2.59(a) requires that the applicant has applied for approval as a standard business sponsor in accordance with the process set out in r.2.61. It requires the applicant to make the application for approval in accordance with the approved form, to pay the prescribed fee and, for applications made on or after 1 July 2013, to make the application by using the internet unless the Minister specifies an alternative means.
Documentation on the Department’s file confirms that the applicant to made the application for approval in accordance with the approved form using the internet and paid the prescribed fee.
Given the above findings, the requirements in r.2.59(a) are met.
Not an existing sponsor
Regulation 2.59(b) requires that the applicant is not a standard business sponsor.
As confirmed by the applicant’s director at the hearing, and from a review of the Department’s records, the Tribunal is satisfied that the applicant is not currently approved as a sponsor.
The requirement in r.2.59(b) is therefore met.
Lawfully operating business
Regulation 2.59(c) requires that the applicant is lawfully operating a business either in or outside Australia.
The evidence before the Tribunal demonstrates that the applicant is a proprietary company, limited by shares, which was registered as such with the Australian Securities and Investments Commission (ASIC) in 1996. Records of the Australian Business Register confirm that the applicant has had an Australian Business Number and has been registered for Goods and Services Tax (GST) since 2000.
On the basis of this material and other evidence provided, the Tribunal is satisfied that the applicant is lawfully operating a business in Australia.
Therefore the requirement in r.2.59(c) is met.
Training benchmarks
Regulations 2.59(d) and (e) contain alternative criteria relating to training requirements an applicant must satisfy if the applicant is lawfully operating a business in Australia depending on how long the applicant has been trading.
If the applicant has traded in Australia for 12 months or more, the applicant must meet the benchmarks for the training of Australian citizens and Australian permanent residents specified in a written instrument: r.2.59(d).If the applicant has not traded for 12 months, the applicant must have an auditable plan to meet the benchmarks specified in the relevant instrument: r.2.59(e). The relevant instrument is IMMI 13/030.
On the basis of its findings above, the Tribunal is satisfied that the applicant has traded for more than 12 months. It is therefore required to meet r.2.59(d).
Specifically, the applicant must meet the requirements of Training Benchmark A or Training Benchmark B as specified in IMMI 13/030. Under Training Benchmark A, the applicant is required to demonstrate recent expenditure, by the business, to the equivalent of at least 2% of the payroll of the business, in payments allocated to an industry-training fund that operates in the same industry as the business. To satisfy Training Benchmark B an applicant must show recent expenditure, by the business, to the equivalent of at least 1% of the payroll of the business, in the provision of training to employees of the business.
The expenditure required under either benchmark must be "recent" expenditure. Departmental policy contained within PAM3 provides that recent expenditure should be interpreted as "expenditure that occurred in the previous 12 months" and the Tribunal, although not bound by policy, accepts that this is consistent with the ordinary meaning of the term "recent".
At the hearing the applicant’s director confirmed that it made no claim to have contributed 2% to an industry training fund and instead contended that it had expended at least 1% of its payroll to staff training (Training Benchmark B).
In relation to the applicant’s payroll, the Tribunal notes that the word is not defined in the Act, Regulations or IMMI 13/030. Accordingly, the Tribunal, while recognising it is not bound by it, considers it relevant to have regard to the Departmental policy guidelines as set out in the Procedures Advice Manual (PAM3) for Sponsorship Applicable to Division 3A of Part 2 of the Act, which provides as follows at section 46.4:
Payroll refers to the amount of money an employer pays in wages to their employees, in the 12 months prior to application lodgement. Payroll expenditure includes any wages, remuneration, salary, commission, bonuses, allowances, superannuation contributions (mandatory or otherwise) or eligible termination payments that are defined as wages in the Act relating to payroll tax in the relevant State/Territory.
The Tribunal notes that this guidance is generally consistent with relevant provisions in the Payroll Tax Act 2007 (Vic) and accordingly has had regard to, and based its calculations on, the above items in the financial information provided.
Prior to the hearing, the applicant provided a Payroll Expenditure summary for the period 1 October 2014 to 30 September 2015. Following clarification from the applicant’s accountant that summary indicated a payroll expenditure of $150,817.53 for the period, including superannuation. In relation to its training expenditure for the relevant period, it provided receipts demonstrating basic barista training totalling $1300.00, advanced barista training in the amount of $415.00 and patisserie training of $750.00. On the Tribunal’s calculations this totalled $2465.00 which, the Tribunal finds, constitutes recent expenditure by the applicant in excess of 1% of its payroll on training of its employees,
Given the above findings, the requirements in r.2.59(d) are met.
Written attestations
Regulation 2.59(f) only applies if the applicant is lawfully operating a business in Australia. It requires that the applicant has attested in writing, that the applicant has a strong record of, or demonstrated commitment to, employing local labour and non-discriminatory employment practices.
The relevant attestations are included in the sponsorship application on the Departmental file.
Therefore the Tribunal finds that the requirement in r.2.59(f) is met.
Adverse information
Regulation 2.59(g) requires that there is no adverse information known to Immigration about the applicant or a person associated with the applicant or it is reasonable to disregard. For the purpose of this regulation, ‘associated with’ and ‘adverse information’ and are defined in r.2.57(2) and (3) respectively.
There is no material before the Tribunal to indicate that there is any adverse information known to Immigration about the applicant or a person associated with the applicant.
The Tribunal accordingly finds that the requirement in r.2.59(g) is met.
Offshore business
Regulation 2.59(h) applies if the applicant is lawfully operating a business outside, and not in, Australia. In these cases, the applicant must be seeking approval as a standard business sponsor in relation to a holder of, or applicant or proposed applicant for, a Subclass 457 visa. The applicant must also intend for that person to establish, or assist in establishing, on behalf of the applicant, a business operation in Australia with overseas connections, or to fulfil, or assist in fulfilling, a contractual obligation of the applicant.
As the Tribunal has found that the applicant is operating a business in Australia, r.2.59(h) does not apply in this case.
Number of nominees
Regulation 2.59(i) requires the applicant to have provided to the Minister the number of persons who the applicant proposes to nominate during the period of the applicant’s approval as a standard business sponsor.
This number must be reasonable, having regard to the information provided to the Minister, or alternatively, if the Minister proposes another number, the applicant must have agreed in writing to nominate no more than the other number of persons during the period of the approval as a standard business sponsor.
At the hearing the applicant’s director stated that it proposed to nominate two persons during the period of its approval as a standard business sponsor. Given the size and nature of the applicant’s business, the Tribunal is satisfied that the proposed number is reasonable.
Given the above findings, the requirement in r.2.59(i) is met.
Training requirements
Regulation 2.59(j) applies only where the applicant has previously been a standard business sponsor. In these cases, the applicant must have fulfilled any commitments made relating to meeting its training requirements and must have complied with the applicable obligations relating to the training requirements during the applicant’s most recent approval as a standard business sponsor, unless it is reasonable to disregard this.
As confirmed by the applicant’s director at the hearing, it has not previously been a standard business sponsor. Accordingly, the Tribunal finds that r.2.59(j) does not apply in this case.
Additional criteria
Regulation 2.60S provides for additional criteria that must be met for the sponsorship to be approved. A copy of the criteria, as relevant to this case, is attached to this decision.
Broadly speaking, to meet r.2.60S the Tribunal must be satisfied that the applicant has not taken any action, or sought to take any action that would:
·result in the transfer of costs to another person, or another person paying costs, associated with the applicant becoming an approved sponsor; and
·result in the transfer of costs to another person, or another person paying costs, that relate specifically to the recruitment of a non-citizen for the purposes of a nomination: r.2.60S(2)
The Tribunal must also be satisfied that the applicant has not recovered, or sought to recover from another person, costs associated with the sponsorship approval, or costs that relate specifically to the recruitment of a non-citizen for the purposes of a nomination: r.2.60S(3)
These requirements may however be disregarded if the Tribunal considers it reasonable to do so: r.2.60S(4).
At the hearing the applicant’s director confirmed that it had covered all the costs associated with the sponsorship approval and has not taken any action or sought to take any action, or has recovered or sought to recover any costs from any other person. On the basis of this evidence, and the absence of any evidence to the contrary, the Tribunal is satisfied that the applicant meets the requirements of r.2.60S.
CONCLUSION
For the reasons given above, the Tribunal finds that the applicant meets all the applicable criteria prescribed in the Regulations to be approved as a standard business sponsor. The Tribunal finds that the term of approval as a standard business sponsor is three years.
DECISION
The Tribunal sets aside the decision not to approve the application and substitutes a decision that the applicant is approved as a standard business sponsor.
Mary-Ann Cooper
Member
ATTACHMENT - Extracts from the Migration Regulations 1994
2.59 Criteria for approval as a standard business sponsor
For subsection 140E (1) of the Act, the criterion that must be satisfied for the Minister to approve an application by a person (the applicant) for approval as a standard business sponsor is that the Minister is satisfied that:
(a)the applicant has applied for approval as a standard business sponsor in accordance with the process set out in regulation 2.61; and
(b)the applicant is not a standard business sponsor; and
(c)the applicant is lawfully operating a business (whether in or outside Australia); and
(d)if the applicant is lawfully operating a business in Australia, and has traded in Australia for 12 months or more — the applicant meets the benchmarks for the training of Australian citizens and Australian permanent residents specified in an instrument in writing made for this paragraph; and
(e)if the applicant is lawfully operating a business in Australia, and has traded in Australia for less than 12 months — the applicant has an auditable plan to meet the benchmarks specified in the instrument, in writing, made for paragraph (d); and
(f)if the applicant is lawfully operating a business in Australia — the applicant has attested, in writing, that the applicant has a strong record of, or a demonstrated commitment to:
(i)employing local labour; and
(ii)non-discriminatory employment practices; and
(g)either:
(i) there is no adverse information known to Immigration about the applicant or a person associated with the applicant; or
(ii) it is reasonable to disregard any adverse information known to Immigration about the applicant or a person associated with the applicant; and.
(h)if the applicant is lawfully operating a business outside Australia and does not lawfully operate a business in Australia – the applicant is seeking to be approved as a standard business sponsor in relation to a holder of, or an applicant or proposed applicant (the visa applicant) for a [Subclass 457 visa], and the applicant intends for the visa holder or visa applicant to:
(i) establish, or assist in establishing, on behalf of the applicant, a business operation in Australia with overseas connections; or
(ii) fulfil, or assist in fulfilling, a contractual obligation of the applicant.
(i)the applicant has provided to the Minister the number of persons who the applicant proposes to nominate during the period of the applicant’s approval as a standard business sponsor, and:
(i) the proposed number is reasonable, having regard to the information provided to the Minister; or
(ii) if the Minister proposes another number of persons as part of considering the application — the applicant has agreed, in writing, to nominate no more than the other number of persons during the period of the applicant’s approval as a standard business sponsor; and
(j)if the applicant has previously been a standard business sponsor:
(i) the applicant:
(A)fulfilled any commitments the applicant made relating to meeting the applicant’s training requirements during the period of the applicant’s most recent approval as a standard business sponsor; and
(B)complied with the applicable obligations under Division 2.19 relating to the applicant’s training requirements during the period of the applicant’s most recent approval as a standard business sponsor; or
(ii) it is reasonable to disregard subparagraph (i).
[Note …]
2.60S Additional criteria for all classes of sponsor — transfer, recovery and payment of costs
(1)For subsection 140E(1) of the Act, the criteria in this regulation are in addition to the criteria in regulations 2.59 to 2.60M.
(2)The criteria that must be satisfied for the Minister to approve an application by a person (the applicant) for approval as a sponsor mentioned in any of regulations 2.59 to 2.60M include a criterion that the Minister is satisfied that:
(a)the applicant has not taken any action, and has not sought to take any action, that would result in the transfer to another person of some or all of the costs, including migration agent costs, associated with the applicant becoming an approved sponsor; and
(b)the applicant has not taken any action, and has not sought to take any action, that would result in another person paying to a person some or all of the costs, including migration agent costs, associated with the applicant becoming an approved sponsor; and
(c)the applicant has not taken any action, and has not sought to take any action, that would result in the transfer to another person of some or all of the costs, including migration agent costs, that relate specifically to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and
(d)the applicant has not taken any action, and has not sought to take any action, that would result in another person paying to a person some or all of the costs, including migration agent costs, that relate specifically to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and
(e)…
(f)....
(3)The criteria that must be satisfied for the Minister to approve an application by a person (the applicant) for approval as a sponsor mentioned in any of regulations 2.59 to 2.60M include a criterion that the Minister is satisfied that:
(a)the applicant has not recovered from another person some or all of the costs, including migration agent costs:
(i) associated with the person becoming an approved sponsor; or
(ii) that relate specifically to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and
(b)the applicant has not sought to recover from another person some or all of the costs, including migration agent costs:
(i) associated with the person becoming an approved sponsor; or
(ii) that relate specifically to the recruitment of a non-citizen for the purposes of a nomination under subsection 140GB(1) of the Act; and
(c)…
(d)…
(4)However, the Minister may disregard a criterion referred to in subregulation (2) or (3) if the Minister considers it reasonable to do so.
NB: the legislation extracted above does not include criteria directed at persons who are sponsoring a Subclass 402, 416 or 488 applicant.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Appeal
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